Kerala High Court
Ajitha vs Mahatma Gandhi University on 22 March, 2001
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
1. The Mahatma Gandhi University notified appointment to the post of Lecturer as per Ext. P1 marked in O.P. 5645 of 2001. Selection shall be based on the first statute which prescribes the constitution of the selection committee. The relevant extract of the first statute is produced as Ext. P5. Statute 4(ii)(b) provides as follows:
For the posts of Reader/Lecturer etc: There shall be a committee in addition to the Vice Chancellor as Chairman, one Syndicate member to be selected by the Vice Chancellor, two outside experts chosen by the Syndicate and Head of the Department or Professor-in-charge.
Petitioner impugns the selection process mainly on the ground that the Selection Committee had not been properly constituted. Instead of two outside experts, there was only one outside expert and another expert included in the selection committee was an insider. It is submitted in Ground A of O.P. 5645 of 2001 that unless both the experts are outsiders the selection committee has no sanction of the first statute. It is further alleged that the second expert included in the selection committee one Dr. V.D. Sebastian, is not an outsider. It is submitted that he is a guest lecturer in the University . Therefore, he cannot be regarded as an outsider. The selection committee is not constituted in terms of the statute and consequently the selection process is not in terms of the procedure made mention of in the statute and therefore selection process is vitiated. It is further contended that five persons had been chalk marked before the selection process started and it is to give them place in the top of the list the said expert who is alleged to be an insider was included. Therefore the selection process is vitiated. The University contended that the said Dr. V.D. Sebastian is a Dean in the University of Cochin. He is not in the service of the University. University contended that Dr. V.D. Sebastian is associated with the School on Indian Legal Thoughts of the first respondent University in giving lectures on specialised subjects in law. Thus it is an admitted position that the said expert has got some relationship with the university in matter of its academic matters and the said expert is drawing remuneration from the funds of the University. The petitioner contends that such a person cannot be termed as an outsider as mentioned in the first statute dealing with the constitution of selection committee as extracted above. Selection committee is not thus constituted in terms of the statute. The selection process itself is vitiated.
2. Additional respondents are impleaded as per CMP No. 12487 of 2001. It is submitted by the petitioner, in addition to the contentions urged by the University that merely because of an irregular act of the University, any right conferred upon the selected candidate shall not be defeated as they do not have any say in the matter of constitution of the selection committee. Their right shall not be affected thereby. It is further contended that on the basis of the decision reported in State of U.P. v. Manbodhan Lal Srivastava and Manbodhan Lal Srivastava v. state of U.P. (AIR 1957 SC 912) even if a selection process is vitiated for the reason of improper constitution of the committee, the selection shall not be vitiated.
3. When the statute provides fro the constitution of the selection committee, any committee which is not constituted in terms of the statute cannot be termed as one legally constituted and the selection conducted by such a committee cannot have legal efficacy. This Court in the decision reported in Sree Sankaracharya University of Sanskrit v. state (1996 (2) KLT 378) held as follows:
"The Supreme Court as well as this Court has consistently held that when an Act prescribes a particular mode or manner in which certain things are to be done by an authority, it could be done only in the manner or mode prescribed by the Act. Thus, in this case, when S. 31 enjoins that the Vice Chancellor shall appoint the teachers on the advice of the selection committee constituted in the manner prescribed by the Statute, the selection committee must be constituted in the manner prescribed by the Statute. That has not been done....."
Further, appointment shall be on the advice of:
".....the Selection Committee constituted in the manner prescribed by the Statutes. As per this Section, the selection committee must be constituted in the manner prescribed by the Statutes and not otherwise. The constitution of the Selection Committee should be in accordance with the provisions contained in the Act....."
When admittedly Dr. V.D. Sebastian, a guest lecturer in the University, is associated in the selection committee in place of an outside expert, it cannot be said that the selection committee was one property and legally constituted. The Constitution of the selection committee was not thus in the mode or manner prescribed by the Act.
4. Even very recently the Supreme Court has held in S. Ramanathan v. Union of Indian & Ors. (2000 (2) SCC 118) that:
".....if there has been an infraction in the matter of compliance of the said Rule, what direction could be given to the appropriate authority? The Cadre Rules are statutory in nature, having been framed by the Central Government in exercise of powers under sub-s. (1) of S. 3 of the All India Services Act, 1951. The language of sub-r. (2) of R. 4, as it stood prior to its amendment is rather peremptory in nature and thus it requires that the Central Government has to re-examine the strength and composition of each in consultation with the State Government concerned and make such alteration therein, as it deems fit. It is no doubt true that an infraction of the aforesaid provisions does not confer a vested right with an employee for requiring the court to issue any mandamus. But it cannot be denied that if there has been an infraction of the provision and no explanation is forthcoming from the Central Government, indicating the circumstances under which the exercise could not be undertaken, the aggrieved party may well approach a court and a court in its turn would be well within its jurisdiction to issue appropriate directions.....That apart when rules and regulations provide for certain things to be done at a certain period, the same should normally be observed and if there has been failure, the court should compel the performance of that duty."
Here no situation of extra ordinary nature not to apply normal rule is pleaded and substantiated by the University. In such situation the ruling relied on by the contesting respondents cannot improve their case and it has no bearing on the fact situation in this case. As held by the Supreme Court in Sukdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi & Anr. (AIR 1975 SC 1331), rules and regulations framed under a statute have the force of law and breach of such rules and regulations would render the executive action justiciable. The importance of observance of the rule in the matter of recruitment has been again reiterated by the Supreme Court though in a different context in Dr. M.A. Haque & Ors. v. Union of India (1993 (2) SCC 213) as follows:
"We cannot lose sight of the fact that the recruitment rules made under Art. 309 of the Constitution have to be followed strictly and not in breach".
This is applicable to the statutory rules in the first stature as extracted above.
5. The contention of the University that V.D. Sebastian is an outsider cannot be accepted so long as he draws whatever little remuneration from the University funds and so long as he delivers lecturers in the academic matters of the University on appointment as a guest lecturer. Therefore the selection process has been vitiated, because of inclusion of an insider in place of an outsider expert.
6. The decision of the Supreme Court in Dr. Triloki Nath Singh v. Dr. Bhagwan Din Misra & Ors. (AIR 1990 SC 2063) is more appropriate in this case. Lucknow University notified recruitment to the posts of Readers in Hindi Language and Linguistic. Linguistic was a separate subject as compared to Hindi language and Literature. The experts included in the selection process for Reader in Linguistics were experts in Hindi Literature and not in linguistics. The relevant provided that the experts shall be in the concerned subject. The University appointed the candidates included in the list drawn by the selection committee which did not have an expert in linguistics. When challenged, the High Court of Judicature Allahabad accepted the challenge holding that "nomination of experts out of the panel drawn for the subject of Hindi, suffered from a serious legal infirmity, substantially affecting the constitution of the selection committee.....and as such the recommendation of the selection committee was liable to be quashed." (Para 3 at page 2064). The Supreme Court affirmed the view of the High Court holding that:
"Thus the appointment of all experts in the present case of subject of Hindi for the selection of one Reader in Linguistics in the Department of Hindi was totally unjust and illegal".
Thus selection committee has to be constituted strictly as provided by the rules.
7. Thus when the constitution of selection committee is proved to be not in consonance with the statute providing for the scheme, the select list drawn up by such improperly constituted committee could not have legal efficacy.
8. The decision in State of U.P. v. Manbodhan Lal Srivastava and Mabodhan Lal Srivastava v. State of U.P. (AIR 1957 SC 912) relied on by the additional respondents does not have any bearing on the issue raised herein. That was a case regarding non consultation with the P.S.C. while imposing a penalty on a delinquent. The finding that non compliance with the provision for consultation with the Public Service Commission does not afford a cause of action, has nothing to do with the case on hand where the constitution of the selection committee is found to be illegal, being not in consonance with the statute.
Accordingly the selection process is quashed. The University is free to continue the selection from among the applicants who had already applied, afresh in accordance with law.
9. O.P. is allowed. No costs.